Transport Insurer of X v. Freight Forwarder Y (2)
Recently the BGH had to consider a case where the transport goods were damaged when the truck went off the road and the trailer carrying the goods overturned. The plaintiff argued that the liability of the defendant was unlimited pursuant to Art. 29* CMR, because the driver had been overtired and/or driving too fast so that the loss had been caused by gross negligence. The BGH overruled the decisions of the first and second instance courts and found that the defendant was entitled to limit its liability. The plaintiff had not proven to the satisfaction of the court that the accident had been caused by gross negligence. The mere allegations that the driver may have been overtired or driving too fast due to time pressure were not sufficient to establish severe fault on the part of the driver pursuant to Art. 29 CMR.
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Case Note contributed by BBL Bracker Boehlhoff & Luebbert. BBL is the International Contributor to this website for Germany
The Hamburg Landgericht as first instance court, had held in favour of the plaintiff that the defendant’s liability was unlimited. The Oberlandesgericht for Hamburg, as second instance court, confirmed this judgment and held that the driver had been grossly negligent, either because he had been overtired or because he had committed a mistake in driving the truck due to extreme time pressure. The defendant, who had the burden of disproving gross negligence, had not put forward any facts to prove any other cause of the loss.
Contrary to the findings of the second instance court, the BGH found that there were no clear indications that the driver had made incorrect statements when he was questioned by the Romanian police. Neither could it be ascertained that the findings of the police were solely based on the statements of the driver. The fact that the police report was consistent with the driver’s statements merely indicated that these statements had been plausible.
Neither should the appeal court have assumed that the driver had been under extreme time pressure. The appeal court had simply accepted the plaintiff’s allegation that the second part of the transport would have had to be performed within five days according to the provisions of the Letter of Credit. The defendant had convincingly argued that the expiry date of the Letter of Credit was 30 June 1993 and the latest shipment date 21 June 1993. Accordingly, the conditions of the Letter of Credit would have entitled the defendant to load the cargo even as late as 15 June 1993, that is, on the date of the accident. Moreover, the appeal court had not taken into account that the relevant transport order had only made reference to the shipment dates, and not the expiry date, in the Letter of Credit, and that the defendant had merely been requested to load the cargo within the week beginning 31 May, without fixing an exact date for the commencement of the transport. Accordingly, the appeal court had not been entitled to assume that the transport should have been performed within five days.
Neither were there sufficient indications that the driver had been overtired. The mere possibility that the driver may not have observed the rest periods could not be held against the defendant because the Romanian police, who had recorded the statement of the driver, drawn up a sketch of the accident and made an alcohol test, had not seen any need to consider that the alleged tiredness of the driver may have caused the accident. Taking into account that the police had also checked the tachometer recordings of the truck, it would have been obvious to make a corresponding statement in the report and/or to initiate proceedings against the driver if there had been indications that he had been overtired.
Finally, the appeal court should have taken into account that any mistake of the driver may have been due to a momentary failure that may as such have been due neither to excessive speed nor to tiredness.
*Art.29 CMR reads:
**Art.23 CMR entitles the carrier to limit its liability in respect of the total or partial loss of the goods to an amount not exceeding 25 gold francs per kilogramme, which in this case, would have amounted to about DM156,000.00.
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